McDonald v. Wood, 118 Ala. 589

McDonald v. Wood

118 Ala. 589 | Ala. | 1897

Lead Opinion

HEAD, J.

There ivas no merit in the several objections made to the security for costs. The sureties themselves executed the obligation; it shows the consideration was the institution of the contest, and bound the sureties for the costs thereof. The case is unlike Bullard v. Johns, 50 Ala. 382.

The bill of exceptions does not purport to contain all the evidence. We cannot, therefore, review the court’s findings of fact.

But, the judgment must be reversed by reason of the refusal of the court to permit the contestee to prove that A. O. Everett, or “Lonny” Everett, as he was generally called, who had voted for Cary, was not a legal voter. The contestee had served notice on contestant of the names of persons charged by him to have voted illegally for Cary, among which was the name “L. Everett.” This man’s name was Alonzo O. Everett. He voted for Cary at the election. The court refused to permit contestee to prove that he had not, at the time of the election, been a resident of the State for twelve months, on the ground that the name “L. Everett,” as it appeared in the notice, did not legally notify contestant of the purpose to make such proof. There was no exception by contestant to the sufficiency of the notice, on its face, on account of any of the names being stated with only initials of Christian names, as many of them were stated, or on any other account. Everett being generally known by the Christian name of “Lonny,” in legal contemplation, that was as efficaciously his Christian name as Alonzo. By it he could legally have been indicted, tried and convicted for any crime he may have committed, against any plea of mis-nomer. The notice,. *597as contestant accepted it, was sufficient, and the proposed proof ought to have been admitted. We cannot affirm that this error did not affect the result. Under the ruling, the court could not exclude, in its final finding, the vote of Everett, and. we have no right to presume that all the evidence was such that its non-exclusion did not prejudice the contestee.

There was 'no error in permitting the witnesses produced by contestant to testify for Avliom they voted. The falsity of the tickets, by reason of the alleged fraudulent substitution, Avas the gist of the action, and to bind the contestants to the tickets themselves, Avhich the inspectors had preserved, for proof of how the electors voted, Avould be to render the contest an empty and useless proceeding.

The law forbade the “fixer,” Laird, to be present at the counting of the votes, and it was the legal duty of the inspectors to require him to depart. The fact that they did so cannot be received in evidence to affect the rights of either party to the contest.

There was nothing objectionable in the question to the witness, O. R. Morris, as to the lines. They did not necessarily call for expert testimony. If the answers to the questions stated facts that were illegal, the remedy was to move to exclude such facts. There was no such motion here. We remark, hoAvever, that if the witness kneAV no more of the true location of the lines than the information derived by him from the survey made by a surveyor employed by him to locate them, he was not competent to testify on the subject. It would be hearsay merely.

This disposes of the exceptions resented.

Rev'ersed and remanded.

Dissenting Opinion

COLEMAN, J.,

dissenting. — Alexander McDonald and R. G. Gary Avere opposing candidates for the office of mayor of Carbon 1-Iill. McDonald was declared to be elected. W. D. Wood, the appellee, instituted the present action to contest McDonald’s election, and the trial court found the issue in favor of the contestant, Wood, from AArhich finding this appeal was prosecuted.

The reversal is based upon tAVO propositions. The first is, that the court erred in refusing to admit evidence to show that one Everett, Avhose vote was counted *598for Cary, was not a legal voter; and second, that as the bill of exceptions did not purport to set out all the evidence, we have no right to presume that this error did not prejudice the contestee. The writer is of the opinion that the court has overlooked or misapplied two principles of 'law and practice in reaching the conclusion to reverse the case. The case was tried before the court without a jury. The rule is, that when the court passes upon the facts, and the conclusion reached from all the legal evidence is correct, this court will not reverse, although the trial court may have erred either in the admission of illegal evidence, or in the exclusion of evidence which should have been admitted, unless it is fairly inferable that but for the error, the court could and ought to have rendered a different conclusion. The rule may be different when a jury passes upon the facts, for this court will not undertake to determine that the verdict of the jury would have been the same, notwithstanding the error.

In the case of Holmes v. The State, 108 Ala. 24, the court used this language: “When trials are had before the court, without a jury, it is only necessary to inquire if there was sufficient legal evidence to sustain the judgment; and if such is found to be the state of the record, we do not reverse because other incompetent matters may have also been heard by. the trial judge, the presumption being' here indulged that the action of the court in rendering its judgment was induced by and rested upon the sufficient legal evidence.” And in the case of Ramey v. Grocery Co., Ib. 476, following the same rule, it was declared that when the case was tried without the intervention of a jury, the admission of illegal or irrelevant evidence would not operate to reverse the case, if the judgment was justified and sustained by the legal evidence.

I am not sure that the opinion of the court conflicts with the foregoing rule, inasmuch as some stress is put upon the fact, that the bill of exceptions does not purpart to set out all the evidence. Upon this point, the rule is uniform that when the bill of exceptions fails to state all the evidence, this court will presume that there was other evidence in order to sustain the judgment or ruling- of the trial court; but in no previous instance has it been held, that this court would presume there was *599other evidence in order to put the trial court in error, and to reverse the case. In the case of Evansville &c. Packet Co. v. Slater, 101 Ala. 245, the record did not sustain the judgment of the trial court, hut inasmuch as the hill of exceptions did not purport to contain all the evidence, it was declared that under the uniform ruling of the court, Ave must presume there was other evidence in the cause to support the judgment beloAv.

If the record in the case at har showed that the contest was sustained by a majority of one, and that majority depended upon counting the vote of Everett for Gary, in Avhose interest the contest Avas prosecuted, then the court erred in refusing to receive evidence to show that he was not a legal voter, and the cause ought to he reversed. But if the record affirmatively shows, that Cary was entitled to a clear majority, after rejecting the vote of .Everett, the judgment ought to be affirmed. It is contrary to the established practice of this court, in such cases, to presume there might have been other evidence, not stated, to overcome the affirmative evidence which is stated, and upon such presumption, reArerse the case.

In my opinion, the record contains sufficient evidence to support the judgment, Avithout counting the vote of Everett for contestant, and the reversal is not founded on correct principles of justice.

Bkickeld, C. J., concurs in the dissenting opinion.